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Navuda v State [2022] FJCA 11; AAU135.2017 (3 March 2022)

IN THE COURT OF APPEAL, FIJI
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO. AAU 135 OF 2017
(High Court No. HAC 088 of 2017)

BETWEEN:

AKUILA NAVUDA

Appellant

AND:

THE STATE

Respondent

Coram : Gamalath, JA
Prematilaka, JA
Bandara, JA

Counsel : Appellant in person

Dr. A. Jack for the Respondent

Date of Hearing : 25 February, 2022

Date of Judgment : 03 March, 2022

JUDGMENT

Gamalath, JA

The preliminary matters;

[1] The appellant was charged in the Resident Magistrates Court, Suva, on a charge of Rape, contrary to section 149 and 150 of the Penal Code Act 17.

According to the particulars of offence, on the 22^nd day of December 2006 at Samabula Central Division, he had unlawful Carnal Knowledge of LISE SCHIMDT, without her consent.

The court record shows that the appellant had been absconding for nearly a period of one year prior to the commencement of the trial. Finally the trial commenced on 7 January 2014.

The case for the prosecution;

[2] The victim Lise Schimdt was residing at a nunnery to become a nun. According to her testimony on 22 December 2006, at around 5a.m. whilst making arrangements to prepare tea in an open house adjacent to the main area of living, suddenly the place got dark as a result of someone switching off the electricity. At that time she was bending over the hearth to lit it up to boil the water. As she stood up she was confronted by the appellant who covered her mouth with one hand and while holding a knife to her neck, he dragged her in to the nearby bush and raped her. After having raped her through the vagina, the appellant had “put the knife into her vagina” making her numbed in fear.

As the issue of virginity is a precondition for her to become a nun, fearing that she would be ousted from the nunnery the witness did not divulge the incident to anyone for a considerable time. Finally after about two months when she started to feel worried of being pregnant the incident was reported to the head of the nunnery who in turn reported the matter to the police. The appellant’s identification was by inspecting the roughs gallery that contained some 2000 photographs of different persons.

According to the evidence of the head of the nunnery Sister Nanise Degei, she was the first person to whom the victim confided the incident and after the commencement of the police investigation and when the victim identified the appellant’s photograph as the assailant, the victim had started to wail in pain and anguish.

At the conclusion of the prosecution the appellant elected to give evidence and denied the allegation. He based the defence on the issue of wrongful identification made based on a photo album. He was assaulted after the arrest.

The Judgement, the verdict and the sentence;

[3] The learned Magistrate, being satisfied beyond any reasonable doubt on the evidence for the prosecution convicted appellant. Having examined the judgement I find a considerable amount of deliberation on the subject of identification and the learned Magistrate had analyzed the evidence in the backdrop of the guiding principles of Turnbull decision (R. v. Turnbull, [1997] 63 Cr. App. R).

After conviction the matter was transferred to the High Court for sentencing and in the High Court, the appellant was sentenced to 17 years imprisonment with a non-parole period of 16 years.

The Grounds of Appeal;

[4] The learned Single Judge granted the appellant leave to appeal against both the conviction as well as the sentence.

The First Ground of Appeal

[5] “That the learned Magistrate erred in law and in fact in trial (sic) the case in the Magistrates Court before transferred (sic) in the last minute to the High Court to for sentencing”.

The Single Judge in considering the ground has raised another issue in which he said that “It must be recalled that this was first called in 2007. For a number of various reasons, not all of which were the fault of the appellant, the trial did not commence in the Magistrates Court until 7^th January 2014. On that day Ms. Salele appeared as Counsel for the appellant. There is a note in the record that on 7 January 2014 the Defence informed the Magistrate that the appellant had elected a Magistrates Court Trial – “was done by accused earlier.” However, on a careful reading of the record there is no note made by any of the Magistrates before whom the matter had been mentioned to that effect. This ground raises issues of law alone and for which leave is not required. The issues are not frivolous or vexatious.”

[6] As for this ground, which is not what the unrepresented appellant had laid down in his own style as his first ground of appeal it was the learned Single Judge who had made the observation as quoted above. However, on a careful reading of the appellant’s ground of appeal it becomes clear that the appellant’s complaint is about the order of the learned Magistrate who following the conviction decided to transfer the case to the High Court for sentencing. This is borne out by the proceedings on 10^th March 2017. In order to be clear in my mind on the issues raised above I carefully read the hand written submissions of the appellant, which were submitted before the arguments commenced in this appeal. The reading of that also does not seem to be of any help in making out the essence of the issues raised above.

Further, in order for the purpose of making the ground intelligible I turned to the written submissions of the State in which the same issue relating to the vagueness of the ground 1 has been discussed and as such I am inclined to accept the submission for the State as correct. The ground is clearly vague and unintelligible.

Anyway, it is to be noted that the learned Magistrate had transferred the case to the High Court for sentencing, and in doing so he had invoked the provisions of section 190 of the Criminal Procedure Act 2009.In the circumstances I find no merits to this ground of appeal.

The Second Ground of Appeal

[7] This ground deals with the non -availability of sufficient legal representation for the appellant at the trial stage.

The Magistrates Court proceedings clearly shows that during the pendency of the trail the appellant was amply represented by a counsel save that on one occasion and despite all the cautioning of the Magistrate, the appellant had elected to conduct his own case. (see pages 82, 101, 102, 103 to 110 of the Magistrates Court record). This is also based on a vaguely drafted unintelligible ground which has no support having regards to the material available on the court record and as such this ground should also fail.

The present ground under consideration is unintelligible and ambiguous in nature and as such cannot be treated favorably.
The Third Ground of Appeal

[8] Taking upon himself the task of formulating the ground of appeal the learned Single Judge had stated that

“I have concluded after having read the record of the proceedings in the Magistrates Court that the appellant has been disadvantaged by the delay and by withdrawal of his Counsel. The effect of those matters on the appellant receiving a fair trial should be considered by the Court of Appeal.”

In the preceding paragraph I have already dealt with the matter relating to the adequacy of having legal representation for the appellant at the trial. As borne out by the court record, the appellant was arraigned before the magistrate on 20^th February 2007 on which day the appellant made an application seeking legal advice. On 21^st May 2007, the appellant informed the magistrate that he was defending himself as the Legal Aid Commission had not responded to his request for legal aid. Later in the day as the Legal Aid informed the magistrate that it cannot help the appellant due to certain missing information from the application of the appellant, an adjournment was granted to resubmit the application after fulfilling the requirement. Then on 11^th June 2007, when the case was called in court the appellant was absent and a bench warrant issued. Thereafter, several dates passed by for the victim was abroad. Once the whereabouts of the victim was found the matter was to be called and on 22^nd April 2010, once the victim was available to testify the case was postponed to facilitate the appellant to secure legal assistance of a counsel. On 19^th May 2010, the appellant informed the magistrate that he waived the right to a counsel; however the Magistrate warned him of the serious repercussions of such a decision, given the seriousness of the charge, and advised the appellant to seek the assistance of a counsel and adjourned the case for 1^st February 2011. On that date the appellant was absent from court. Thereafter, until 20th June 2011, the appellant was absent from proceedings. Again until February 2012 there seemed to have been a problem in securing the attendance of the appellant for further proceedings. On 13^th February 2018 the appellant was arrested and produced on the execution of a bench warrant. The appellant in explaining the reason for his absence for almost a year stated that as his wife gave birth to a child he was unable to attend the court. Thereafter, as borne out by the proceedings, when the matter was taken up for hearing the appellant had a legal representation arranged; (see page 250 of the proceedings).

[9] When one examines the proceedings carefully it becomes abundantly clear the learned Magistrate had taken an overtly sympathetic view of the appellant, who had been frequently disappearing from further proceedings throughout the progression of the case. As such the delay in concluding the trial cannot be attributed to the justice system. In fact if at all if there is anyone who had contributed to the long delay, it was the irregular behavior of the appellant himself who should take the responsibility. Finally on 7^th February 2017, the appellant informed the magistrate that he was appearing in person and declined to seek the assistance of the legal aid.

[10] In the background of such material I do not find anything to substantiate the grounds of appeal on which the appellant is relying to assail his conviction and as such Ground 3 as referred to in the Single Judge’s Ruling and as had been stated by the appellant as the grounds on which he is relying, cannot succeed.

[11] The ground against the sentence as formulated in the Single Judge’s Ruling is that “In relation to the sentence appeal there is an arguable error in that the sentence imposed by the High Court in 2017 was not appropriate for the offence that was committed in 2007, when a considerable period of portion of that delay was not attributable to the appellant.”

Since this inferentially involved an exercise of apportioning the reasons for the delay between several parties engaged in the process, including the appellant himself to a great extent, in my opinion an innovative mechanism that is seasoned with mercy would have to be evolved if we are to treat the ground favorably. However, it should be a case specific approach for as pronounced in the decision, (quite elucidating decision on the often discussed issue of how to pick an accurate starting point in sentencing), in Mitieli Naikelekelevesi v. The State, [2008] FJCA AAU 0061 of 2007, 27 June 2008;

“In Fiji sentencing now involves a more structured approach incorporating a two trier process. The first involves the articulation of a starting point based on guideline appellate judgements, the aggravating features of the offence [not the offender]; the seriousness of the penalty as set out in the act of Parliament and relevant community considerations. The second involves the application of the aggravating features of the offender which will increase the starting point, then balancing the mitigating factors which will decrease the sentence, leading to a sentence end point.”

[12] Upon examining the approach of the learned High Court Judge in the instant case, I find that he was well in line with the aforesaid dicta, and as such strictly speaking the sentence is well within the range as stipulated.

[13] However, having regard to the State’s written submissions I am intrigued by the facts as narrated in it in describing varying factors that have operated at different times in causing the delay in completion of the process involved in the trial relating to this appeal and when one views them in the light of the Constitutional Guarantee that ensures an accused person speedy justice, I am inclined to attach a certain degree of significance to them in determining whether the sentence imposed on the appellant needs any revisit.

[14] The State submits, that in addition to the “erratic” behavior on the part of the appellant who on several occasions jumped bail, absconded with no valid reasons, in fact in one occasion he was absconding for 2 years, kept on changing and dismissing the counsel at least 5 times including on the eve of trial, repeatedly failed to provide particulars of his challenge to admissions made in his caution interview for several months, and misplaced previously provided disclosures and not being ready to proceed with the trial on 17 occasions, there had been certain other reasons that contributed to the delay with a considerable force.

[15] The State admits in its submissions that the case was called on 82 times over a period of 10 years. It further submits that “When he was located and brought before the courts it was in 2009”. Since there were changes to the Constitution, there had been a period in which the courts could not function in its usual pace and as a result by the time the courts resumed anything like normal operations thereafter, the backlog of cases would have inevitably seen longer dates set for trial” (see para 18 of the State’s written submissions).

[16] As borne out by the proceedings, since the victim has left the country before the trial, her non availability also had contributed to the delay in completing the trial (see p.239, 16^th December 2009). She couldn’t be located for about 5 months to commence the proceedings and in determining on the cause involved in finishing the trial without delay such factors should also be counted, albeit their insignificant character compared to the behavior of the appellant as referred to above.

[17] Considering such factors and their cumulative effect on the speedy justice, I am inclined to grant the appellant the levity of a reduction of the sentence of imprisonment by one year.

[18] Accordingly, his sentence of imprisonment is reduced from 17 years to 16 years and the non -parole period is reduced from 16 years to 15 years.

[19] Subject to the said variation the appeal is dismissed.

Prematilaka, JA

[20] I have read in draft the judgment of Gamalath, JA and agree that the appeal against conviction should be dismissed. I also agree with the variation of the sentence proposed.

Bandara, JA

[21] I have read the draft judgment of Gamalath, JA and agree with his reasoning and conclusion.

The Order of the Court

(1) The appeal against conviction is dismissed.

(2) The sentence of imprisonment is reduced from 17 years to 16 years and the non-parole period is reduced from 16 years to 15 years. Subject to the variation of the sentence, the appeal against the sentence is dismissed.

Hon. Justice S. Gamalath

JUSTICE OF APPEAL

Hon. Justice C. Prematilaka

JUSTICE OF APPEAL

Hon. Justice W. Bandara

JUSTICE OF APPEAL